A few quotes and slogans immediately come to mind reading this New York Times story about how the New York County District Attorneys office has failed #MeToo women by passing on a couple cases its writer, Jan Ransom, believes valid.* The current district attorney, Cy Vance, and his sex crimes unit, headed by Marsha Bashford, are held up for blame, for failing to prosecute the accused because the accusers want them to.
The experiences of women like Ms. Duong raise questions for prosecutors like Mr. Bragg and lawmakers, who have been reconsidering New York’s rape laws. How should prosecutors approach cases where victims’ accounts are credible, but may be difficult to prove in court? Should the state’s laws make convictions in such cases easier to win? And how should the criminal justice system balance the rights of the accused with a modern understanding of sexual violence?
When it’s too hard to get a conviction under the law, change the law? What’s meant by the insipid “balance the rights of the accused with a modern understanding of sexual violence” is hard to say. A wag might perceive this “modern understanding” to be any act a “survivor” believes to be “sexual violence” because she believes it, whether at the time, the next day or 20 years later, whether it was enthusiastically consensual at the time but, regretted later, whether it was actually a sex act or a benign act that made the “survivor” feel sexually violated.
Which rights should be balanced? Get rid of that darn presumption of innocence? Lower the burden of proof to preponderance? Redefine rape to preclude sex with an intoxicated, as opposed to incapacitated, woman? Create a new statutory presumption that provides if a “survivor” claims she was raped using whatever the “modern understanding” of the word means at any given moment, the burden shifts to the defendant to prove that she wasn’t?
Alvin Bragg won the Dem primary and will be presumed next district attorney of New York County. Vance’s office is taken to task for two reasons, the first being that they passed on cases Ransom contends were legitimate and provable. Whether that’s correct is a matter best not left in the hands of either accusers, “survivor” activists or New York Times reporters. The second is that they passed on cases where they had no sincere belief they could prove guilt beyond a reasonable doubt.
Bragg, however, says he’s going to clean up the swamp.
Mr. Bragg, in an interview, said he planned to “reboot” the sex crimes bureau “from the ground up,” by assessing its leadership and staff with input from survivors. He said he also intended to evaluate why certain cases are rejected, and that the likelihood of a conviction should not be a determining factor.
That last line is the one that should grab you, that “likelihood of a conviction should not be a determining factor.” Or to put it in more accurate words, prosecute the innocent even though you have no legitimate belief that the evidence of guilt is sufficient. Put them through the wringer. Put their names in the paper. Destroy their lives. Ruin their jobs and education. Break up their families. Cost them a small fortune. Make them lives under the threat of imprisonment for a crime that not even the prosecutor believes happened or can be proven.
And hence, the quotes and slogans.
First, there’s former Chief Judge Sol Wachtler’s quip that a prosecutor can indict a ham sandwich.
Second, there’s the beloved cop slogan, you can beat the rap but you can’t beat the ride.
And third, the reaction to campus “rape culture” ideology, just wait until the get into they real world.
It would take little effort for Bragg to make good on his promise of prosecuting presumptively innocent people for whom there is no expectation of conviction for no better reason than to appease the “survivor” under the “modern understanding of sexual violence.” Put the accuser into an NA grand jury and boom, he’s indicted. Instruct the grand jury that it’s rape if she feels it’s rape and let the judge be the bad guy when he inspects the grand jury minutes for sufficiency. Judges in Manhattan aren’t necessarily immune from being a bit antagonistic toward indicted rapists either.
But the impact of prosecuting a case to acquittal on a defendant is no small matter, even if the deep concern for constitutional rights for other crimes evaporates when it’s a sex accusation. The arrest, prosecution and its ensuing consequences, the “ride” if you will, don’t go away just because the case ultimately ends in dismissal or acquittal. As we’re reliably informed, juries don’t find defendants innocent, so at best they’re “guilty,” but not guilty enough to get convicted. And that’s where they remain for the rest of their lives.
As the irrational and unprincipled push to water down rights and the principles behind them made its way through the academy and quad over the years, many believed it would peter out as the kids grew up. They would learn in real jobs from grown ups that their silly beliefs and fragile feelings weren’t going to be tolerated, we were told. But it hasn’t quite turned out that way, as the real world morphed into their fantasy world. It was apparent years ago that what started on campus in Title IX sex tribunals was worming its way into real law, undermining the minimal protections afforded defendants to assure that no “survivor” was denied the “justice” to which she felt entitled.
And so here we are, a presumptive district attorney heading perhaps the foremost state prosecutorial office in the nation, announcing that he will prosecute the innocent even though he knows he can’t win at trial. That brings up another quote from former Labor Secretary, Ray Donovan, upon his acquittal.
Where do I go to get my reputation back?
“Survivors” don’t care. Jan Ransom doesn’t care. And Alvin Bragg doesn’t care. Forget Blackstone’s ratio, as the new tenet is it’s better to make innocent men suffer prosecution and perhaps conviction than let any “survivor” feel unsupported.
*It’s impossible to draw any conclusion as to whether Ransom’s characterizations are right or wrong, since they reflect only the information she chose to present and are unchallenged by the means demanded by due process. They may be correct. They may not. Trial by New York Times reporter, however, is not how guilt is determined.